Public interest runs second again

THERE'S nothing like an early January defeat at the hands of Government bureaucrats to set the tone for another grey year in the freedom-of-information game.

This one came in a test case in the Administrative Appeals Tribunal, where the Department of Employment and Workplace Relations has spent about $200,000 to avoid giving the aifHeraldaif a 50 per cent discount on a $13,000 bill.

The facts are simple enough. Back in 2005, the Federal Government introduced the welfare-to-work scheme. After the new law was passed, the Herald journalist Stephanie Peatling applied for economic modelling and other working documents that might have revealed more about the changes than government press releases.

When the department said it would cost $13,000 just to make a decision, she asked for a 50 per cent discount, as the law says discounts are allowed when ``the giving of access is in the general public interest''.

Given that the welfare-to-work scheme was the biggest change to social security policy in half a century, it's hard to think it could not be in the public interest. The department said otherwise and refused the discount.

Laughably, it claimed not to know how the material would come to the attention of the public if it was released. We explained that we would publish it, but still had no luck. So we took the department to the tribunal, which is supposed to give people a chance to talk directly to bureaucrats, but the department banned its staff from the hearing and instead employed Lex Holcombe, a partner at Phillips Fox, and Stephen Gageler, SC, a leading administrative law barrister.

We lodged an FoI request for the legal costs but failed again, because Phillips Fox said its hourly rate was ``commercial in-confidence'' and its release could have a ``severe financial impact'' on the firm.

Holcombe and the department gave plenty of reasons why giving access to the material was not in the public interest. It was `` potentially confusing'', some documents had been ``overtaken by events'' and (most frightening of all) sensitive information was embedded in the documents which, if released, could cause ordinary people to ``distort their behaviour''.

The tribunal's Deputy President Walker rejected much of this tosh. He found the public would get access to the information if it was provided to the aifHeraldaifus; that while it might confuse some, its release was still in the public interestus; and there was no evidence that people would distort their behaviour or why that might be detrimental.

Granting access to the material was in the public interest, he concluded, except for one point, the ``countervailing consideration''.

That consideration is that because the Herald is a big paper owned by a big company called Fairfax which makes big profits (and pays a lot of tax), and because the aifHeraldaif made more than 60 freedom-of-information applications last year, no discount on the grounds of public interest should be given, as using freedom of information was part of the normal newspaper publishing business.

Walker accepted there would be no commercial benefit to the Herald from pursing the material and said there was ``little doubt that charges of the order of $13,069 .hs.hs.are a disincentive'' to FoI requests but still found the countervailing consideration outweighed the public interest.

Remember, this $13,000 was just to get the decision. With or without a discount, it's a lot of money to pay when there's no certainty it will produce a single document, especially as the department has already foreshadowed classifying as exempt at least 90 per cent of the material sought.

The media's use of FoI legislation in Australia is already very low compared with what happens in other countries, and this decision will do nothing to change that. Indeed, it's likely to see more departments discourage requests by charging inflated fees.

Despite his ruling, Walker said there was still scope for a discount for media FoI applications in special circumstances.

``A country radio station might meet the test if it were seeking access to documents containing information of direct importance to those living in its reception area but the charges were beyond the resources it could allocate to news gathering.''
Radio Bourke, it's up to you.

Posted
by Matthew MooreJanuary 31, 2007 5:30 PM

LATEST COMMENTS

I'm waiting for the day when the skeletons will bust from the closets of governments departments in Cambe3rra.
Cherrio, Tino, an expatriate

Posted by: Tino Rossi on February 1, 2007 4:41 AM

This is unbelievable! Where is the democracy in this situation?!! Let us have the name of the "top dog" who orders this gate-keeping of - what is it called (?) Freedom of Information! Freedom = without cost - and the "Information" is the protection of public interest! There is no "secret"/"hidden"/"protective" reason why anyone should not have immediate access to any information of government legislation whatsoever! The only protection should be to private citizen (not government) detail!

One wants to write something outrageous like 'a pox on them all' who would block our right (especially that of journalists searching on our behalves" to know what the government is doing to us!!!!

Thanks for this story. Pursue it till its successful end, please!

Posted by: jim kable on February 1, 2007 6:41 AM

Matt, just an idea......... Seeing as how Rudd is making a tilt for the top job why not ask him his attitude to FOI? Just curious to see if he intends to be as secretive and obstructive as the current bunch....

Posted by: Jojam on February 1, 2007 6:59 AM

Good read. The FoI system is broken when you can't get the economic modelling etc either by direct interview or negotiated access outlining further particulars of what you want.

Obviously a generalised fishing exercise is not such a good use of public servants' time but the public interest in such sensitive policy area as welfare to work is blatantly obvious. Is this just another example of systemic prejudice against poor people being empowered by inconvenient info motivating them to get involved in politics via SMH reportage?
Looks like it.

It really annoys me when I come across situations suggesting politics and indeed democracy is only for rich folks. The likelihood only poorer readers might be interested suggests a public service by the Herald seeking access in the first place which implies a discount otherwise its effective censorship to the poor.

Posted by: Tom McLoughlin, solicitor on February 1, 2007 7:25 AM

Can we please have more articles of this kind on the front page. Near election time would be even better. People in this country need to be aware that we have a government who do things like this every day. Their spin doctors work overtime selling us bogus legislation while not disclosing the whole facts then they have the audacity to say the facts are too confusing for us. Why have FOI if the Government discourage obtaining it at every turn. Welcome to honest Johns democracy.

Posted by: stuart on February 1, 2007 10:17 AM

Hi Matthew, I would like to refer Just and the Department of Justice (1996) 10 VAR 126 at 129 the Victorian AAT observed: ‘When S 50(4) speaks of ‘the public interest’ it refers to the benefit of the community in general not the benefit of any individual much less curiosity of any individual.’ See further Re Pratt and Psychologists Registration Board of Victoria (unreptd, 28 April 1998, AAT, Judge Wood, President) where it was observed that the public interest meant the ‘interest of the public as a whole as distinct from an individual member of the public’.

Posted by: Robert Cianfrano on February 1, 2007 11:39 AM

I like it when the reason for not releasing documents is that they are "potentially confusing". Given that Politicians, and no doubt the bureaucrats that work for them, are supposed to represent and directly reflect the people they serve; it seems likely that they are “potentially confused” by the same documentation. Scary huh?

Posted by: JQ on February 1, 2007 12:26 PM

Bad enough that they are blocking access to docs clearly in the public interest, but that so much taxpayer's money is used to prevent their release. Good economic management...NOT!

Posted by: Gary D on February 1, 2007 2:33 PM

If only the media showed a similar drive uncovering the mass of Government data showing the decline in student performances which took place (for example) in the four decades from WW II onwards.

Parents (and probably most bureaucrats) would be staggered and, in some cases at least one would hope, appalled. Instead we whinge about money, which is an easier concept to grasp, but clearly not the major factor in the change, something anyone with an analytical mind could see --- once the buried material was uncovered.

Posted by: Norman on February 2, 2007 10:05 AM

No one should be at all surprised by these actions. One needs to know that this government will go to extraordinary lenghts to stop access to its decisions. First it actively discourages senior bureaucrats from bringing forth anything which may be seen as controversial - if you do this, then you will be told "this Ministerial briefing is a draft, and you should look at it again before submitting" or if you are brave enough to persist, they will have the document signed off "as sighted in the Minister's office" by a staffer.
Second, to prevent leaking, all cabinet-in-confidence documents now have embedded in them a deliberate error so that each person receiving it has a small typographical error unique to their copy. If they leak, in the great public servie tradition of public interest, they will know or find the culpit. Third, they will take journalists to court and compel them to dioclose source or face jail.
Fear is the currency of the Howard Government like no other I have seen in this country - and that inc. Joh B-Petersen.